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North Carolina Attorney General reports

Biennial report of the Attorney-General of the State of North Carolina

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UNIVERSITY OF N.C. AT CHAPEL HILL
1
i_ 00033944527
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
BIENNIAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
STATE OF NORTH CAROLINA
1924-1926
DENNIS G. BRUMMITT
ATTORNEY GENERAL
FRANK NASH
CHARLES ROSS
JOHN H. HARWOOD*
OLIVER H. ALLEN
•Succeeded by Oliver H. Allen July 8, 1926
RALEIGH
Edwards & Broughton Compakt
1926
LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF THE
CONSTITUTION IN 1776
Term of Office
Avery, Waightstill 1777-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William - 1810-1810
Burton, Hutchins G 1810-1816
Drew, William 1816-1825
Taylor, James F 1825-1828
Jones, Robert H 1828-1828
Saunders, Romulus M 1828-1834
Daniel, John R. J - — 1834-1840
McQueen, Hugh - - 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F --. 1848-1851
Eaton, William -. 1851-1852
Ransom, Matt W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A - 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M - 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S - - 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank I 1892-1896
Walser, Zeb V - 189^6-1900
Douglass, Robert D 1900-1901
Gilmer, Robert D 1901-1908
Eickett, T. W 1909-1916
Manning, James S - 1917-1925
Brummitt, Dennis G ...- 1925-
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/biennialrep1924attrny1926'
LETTER OF TRANSMITTAL
State of North Carolina,
Department of AttornE'Y General,
Raleigh, December 1, 1926.
To His Excellency, Angus W. McLean, Governor,
Raleigh, N. C.
Dear Sir:—In compliance with sections 6098-6099, Con. Stat., 1919,
I herewith submit the biennial report of this department for the years
1924-1925 and 1925-1926.
Respectfully submitted,
Dennis G. Bkummitt,
Attorney General.
EXHIBIT
Civil Actions Disposed of ok Pending in the Courts of North
Carolina and the Federal Courts
Disposed of in the Supreme Court of North Carolina
Attorney General v. Railways, 188 IST. C, 648.
Lacy, Treasurer, v. Globe Indemnity Co., 189 N. C, 24.
State and City B. & T. Co., Exrs., v. Doughton, 188 N. C, 762.
Patterson v. Everett, Secretary of State, 189 N. C, 828.
Boon-Iseley Co. v. Doughton, 189 N". C, 720.
In re Inheritance Tax v. Estates of Burwell and Davis, 190 IST. C, 358.
Calkins Dredging Co. v. State, 191 E". C, 243.
Doughton V. J. E. Johnston, Exr. (Appeal withdrawn October 5,
]926.)
Young V. Highway Commission, 190 N. C, 52,
Town of Newton v. Highway Commission. (Petition to rehear de-nied.)
Automotive Trade Association v. Doughton, 192 N. C, 384.
Pending in the Supreme Court of North Carolina
Carlyle v. Highway Commission. .
-
Rich's Executors v. Doughton. '
'
'
' -
,
Lacy, Treasurer, v. Surety Companies.
Lacy, Treasurer, v. Mass. Bonding & Insurance Co.
State Prison v. Surety Companies.
E. L. Barton v. Grist, Commissioner of Labor.
Tate V. Board of Education. .. ,Z ,'J :• ^;::;: :
Eagan V. Doughton. } , ...TI
Johnston et al. v. Highway Commission. r . , ...
Disposed of in the Superior Courts of North Carolina
Be Will of Eliza M. Hass. (Docketed and dismissed in Supreme
Court.)
Re Will of Mary E. Hass. (Docketed and dismissed in Supreme
Court.)
Walker Electrical Co. v. Sanatorium.
State V. D. C. Heath & Co.
State V. Silver, Burdett & Co.
State V. American Book Co.
o biennial report of the attorney general
Pending in the Superior Courts of I^orth Carolina
State on relation of Attorney General v. Ice Companies.
Emmett McKoy v. State College.
Pickett and Johnson v. State Board of Education.
Railways v. City of Goldsboro.
Chapman-Hunt Co. v. Sanatorium.
Haines, Jones & Cadbury Co. v. School for Blind and Deaf.
Haines, Jones & Cadbury Co. v. State College.
General Motors Corporation v. Doughton and Lacy.
State V. "Western Union Telegraph Co.
State V. Postal Telegraph Co.
Board of Charities and Pub. Welfare v. Highland Hospital et al.
General Motors Acceptance Corporation v. Doughton.
Disposed of in United States Supreme Court
Rhode Island Hospital Tr. Co. v. Doughton (reversed), 70 L. ed., 355.
Henderson Water Co. v. Corp. Commission (judgment against plain-tiff),
269 U. S., 278.
Pending in United States Supreme Court
Wachovia Bank & Trust Co. v. Doughton.
Disposed of in Circuit Court of Appeals
Maryland Casualty Co. v. Fouts, Receiver, 11 Fed. Rep. (N.S.) 71.
Pending in Circuit Court of Appeals
State V. Southern Railway and Receiver of A, & Y. Railway Co.
Pending in U. S. District Court for Eastern District of
North Carolina
Executors of Angier B. Duke v. Doughton.
EXHIBIT II
List of Cases Argued by the Attorney General and Assistant
Attorney General Before the Supreme Court, Fall Term, 1924,
Spring Term, 1925; Fall Term, 1925; Spring Term, 1926.
AUGUST TEEM, 1924
1. State V. Beavers, from Durham; liquor, verdict, guilty; appeal
by defendant; affirmed.
2. State V. Bradsher, from Person; liquor; verdict, guilty; appeal
by defendant ; affirmed.
3. State V. Bryant, from Cherokee ; murder, second degree ; verdict,
guilty ; appeal by defendant ; new trial.
4. State V. Burke, from Alamance ; liquor ; verdict, guilty ; appeal
by defendant; affirmed.
5. State V. Collins, from Anson; murder, first, degree; verdict,
guilty ; appeal by defendant ; affirmed.
6. State V. Crisp, from Graham ; felonious breaking ; verdict, guilty
;
appeal by defendant; new trial.
7. State V. Dickerson, from Wilson ; liquor ; verdict, guilty ; appeal
by defendant ; affirmed.
8. State V. Doss, from Lee; seduction; verdict, guilty; appeal by
defendant ; new trial.
9. State V. Durham, from Orange ; liquor ; verdict, guilty ; appeal by
defendant; affirmed.
10. State V. Edwards, from Rockingham; liquor; verdict, guilty;
appeal by defendant ; affirmed.
11. State V. Farmer, from Wayne; murder, second degree; motion
to reinstate appeal denied.
12. State V. Galloway, from ISTew Hanover ; gaming ; verdict, guilty
appeal by defendant ; affirmed.
13. State V. George, from Surry; false^ entry; verdict, guilty; appeal
by defendant; affirmed,
14. State V. Godette, from Craven ; liquor ; verdict, guilty ; appeal
by defendant; affirmed.
15. 'State V. Hammond, from Moore; liquor; verdict, guilty; appeal
by defendant ; affirmed.
16. State V. Hartsfield, from Wake; liquor; verdict, guilty; appeal
by defendant; affirmed.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL
17. State V. Hilton, from Catawba; barn burning; verdict, guilty;
appeal by defendant ; affirmed.
18. State V. Holder, from Richmond; larceny; verdict, guilty; ap-peal
by defendant ; affirmed.
19. State V. Horner, from Alamance; assault with deadly weapon;
verdict, guilty ; appeal by defendant ; new trial.
20. State v. Johnson, from Anson ; school law ; verdict, guilty ; ap-peal
by defendant ; new trial.
21. State V. Johnson, from Forsyth ; larceny ; verdict, guilty ; appeal
by defendant ; affirmed.
22. State v. Jones, from Pasquotank ; manslaughter ; verdict, guilty
;
appeal by defendant ; affirmed.
23. State v. Judd, from Chatham ; liquor ; verdict, guilty ; appeal by
defendant; affirmed.
24. State v. Knight, from Anson ; liquor ; verdict, guilty ; appeal by
defendant; affirmed.
25. State v. Lutterloh, from New Hanover ; manslaughter ; verdict,
guilty ; appeal by defendant ; affirmed.
2G. State v. McLamb, from Johnston; serious assault; verdict,
guilty ; appeal by defendant ; affirmed.
27. State v. May, from Alamance; gambling; verdict, guilty; ap-peal
by defendant ; affirmed.
28. State v. Mitchem, from Gaston ; manslaughter ; verdict, guilty
appeal by defendant ; affirmed.
29. State v. O'Briant, from Person; offense against tax law; special
verdict ; appeal by State ; reversed.
30. State v. Porter, from Harnett ; carnal knowledge of female child ;
verdict, guilty; appeal by defendant; affirmed.
31. State V. Pressley, from Edgecombe; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
32. State v. Rabil, from Wake; abandonment; motion to reinstate;
denied.
33. State v. Roberts, from Forsyth; fornication and adultery; ver-dict_,
guilty; appeal by defendant; affirmed.
34. State v. Roberts, from Cherokee ; false pretense ; verdict, guilty
;
appeal by defendant ; affirmed.
35. State v. Robinson, from Haywood ; murder, second degree ; ver-dict,
guilty ; appeal by defendant ; new trial.
36. State v. Rodman, from Mecklenburg; murder, first degree; ver-dict,
guilty ; appeal by defendant ; affirmed.
37. State v. Rose, from Durham; liquor; verdict, guilty; appeal by
defendant ; affirmed.
38. State v. Stallings, from Vance; municipal ordinance; special
verdict; appeal by defendant; judgment reversed.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
39. State v. Walton, from Hoke; murder, first degree; verdict,
guilty; appeal by defendant; affirmed.
40. State v. Weddington, from Rowan ; Sunday law ; verdict, guilty
;
appeal by defendant; affirmed.
41. State V. Wilson, from Durham ; mayhem ; verdict, guilty ; appeal
by defendant; new trial.
Docketed and Dismissed
42. State v. Bryan, from Stokes.
43. State v. Lena Watkins, from Stokes.
44. State v. Will Brown, from Forsyth.
45. State v. T. C. Arnold, from Forsyth.
46. State v. A. F. Short et al., from Buncombe.
47. State v. Farmer, from Wayne.
48. State v. Rabil, from Wayne.
49. State v. Jim Johnson, from Harnett.
50. State v. Jake Phillips, from Greene.
51. State V. Gordon, from Forsyth.
52. State v. Tom Crotts, from Davidson.
53. State v. W. T. Grubbs, from Forsyth.
54. State v. Bob Holt, from Forsyth.
55. State v. Alice Jackson, from Haywood.
56. State v. Alice Jackson, from Haywood.
57. State v. Sewell Medford, from Haywood. .
FEBRUARY TERM, 1925
58. State v. Barbee, from Durham; prostitution; verdict, guilty;
appeal by defendant ; affirmed.
59. State v. Bost, from Cabarrus; manslaughter; verdict, guilty;
appeal by defendant ; new trial.
60. State v. Bradsher, from Person ; judgment on bond ; affirmed.
61. State V. Crook, from Union; seduction; verdict, guilty; appeal
by defendant; reversed.
62. State v. Denson, from Edgecombe ; municipal ordinance ; verdict,
guilty; appeal by defendant; affirmed.
63. State v. Dickerson, from Franklin ; liquor ; verdict, guilty ; ap-peal
by defendant ; affirmed.
64. State v. Dove, from Craven; liquor; verdict, guilty; appeal by
defendant ; affirmed.
65. State v. Evans, from Nash ; murder, first degree ; verdict, guilty
appeal by defendant; affirmed.
66. State v. Hardy, from Beaufort; liquor; verdict, guilty; appeal
by defendant; new trial.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL
67. State v. Hughes, from Lenoir; storebreaking ; verdict, guilty;
appeal by defendant; affirmed.
68. State v. Jarrett, from Forsyth; liquor; verdict, guilty; appeal
by defendant ; affirmed.
69. State v. Love, from Henderson ; murder ; first degree ; verdict,
guilty ; ajjpeal by defendant ; affirmed.
70. State v. McAfee, from Lenoir; liquor; verdict, guilty; appeal
by defendant ; affirmed.
71. State V. Malpass, from Pender; obstruction of highway; verdict,
guilty ; appeal by defendant ; affirmed.
72. State v. Miller, from Watauga; secret assault; verdict, guilty;
appeal by defendant ; affirmed.
73. State v. Palmore, from Guilford ; Blue Sky law ; verdict, guilty
appeal by defendant; new trial.
74. State v. Ray, from Buncombe; larceny; verdict, guilty; appeal
by defendant; affirmed.
75. State v. E,edditt, from Beaufort ; assault with deadly weapon
;
verdict, guilty ; appeal by defendant ; new trial.
76. State v. Rideout, from Nash ; manslaughter ; verdict, guilty
appeal by defendant; affirmed.
77. State v. Sinodis, from Wake; prostitution; verdict, guilty; ap-peal
by defendant ; affirmed.
78. State v. Stewart, from Brunswick; murder, first degree; verdict,
guilty ; appeal by defendant ; affirmed.
79. State v. Stowe, from Mecklenburg; municipal ordinance; ver-dict,
guilty ; appeal by defendant ; affirmed.
80. State v. Swindell, from Pasquotank ; carnal knowledge of infant
female ; verdict, guilty ; appeal by defendant ; affirmed.
81. State V. Williams, from Scotland; murder, first degree; verdict,
guilty ; appeal by defendant ; affirmed.
Docketed and Dismissed
82. State v. Whithead, from Edgecombe.
83. State v. Pitzhugh Lane, from Wayne.
84. State v. S. L. Parish, from Franklin.
85. State v. Julia Mclver, from Wake.
86. State v. Rufus Self, from Forsyth.
87. State v. Ben Reavis, from Harnett.
88. State v. Russell Cobb, from Forsyth.
89. State v. John and Shirley Lowman, from Davidson.
90. State v. John Barrett, from Madison.
91. State V. David Robinson, from Haywood.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
AUGUST TERM, 1925
92. State v. Abernethy, from Catawba; municipal ordinance; ver-dict,
guilty; appeal by dependant; affirmed.
93. State v. Allen, from Moore; liquor; verdict, guilty; appeal by
defendant ; new trial.
94. State v. Ballard, from Gates ; murder, first degree ; verdict,
guilty; appeal by defendant; affirmed.
95. State v. Berry, from Orange; assault with deadly weapon;
verdict, guilty ; appeal by defendant ; new trial.
96. State v. Brodie, from Stokes; arson; verdict, guilty; appeal by
defendant ; affirmed.
97. State v. Carivey, from Halifax; escape; verdict, guilty; appeal
by defendant ; affirmed.
98. State v. Cooper, from I^ew Hanover; banking act; verdict,
guilty ; appeal by defendant ; affirmed.
99. State v. Dawkins, from Forsyth; murder, first degree; verdict,
guilty; appeal by defendant; affirmed.
100. State V. Edwards, from Hertford ; bad check ; State appealed
;
affirmed.
101. State V. Flood, from Edgecombe; liquor; verdict, guilty; ap-peal
by defendant ; affirmed.
102. State v. Griffin, from Martin; lynching; verdict, guilty;
appeal by defendant ; affirmed.
103. State v. Horton, from Gates; liquor; verdict, guilty; appeal
by defendant ; affirmed.
104. State v. Jackson, from Wake; prostitution; verdict, guilty;
appeal by defendant; affirmed.
105. State v. Kline, from Lee; assault with deadly weapon; verdict,
guilty; appeal by defendant; new trial.
106. State v. Meyers, from Sampson; liquor; verdict, guilty; ap-peal
by defendant ; new trial.
107. State v. Montague, from Burke; rape; verdict, guilty; appeal
by defendant ; affirmed.
108. State v. Moore, from Montgomery; liquor; verdict, guilty;
appeal by defendant ; affirmed.
109. State v. ISTeal, from Forsyth ; receiving stolen goods ; verdict,
guilty ; appeal by defendant ; affirmed.
110. State V. Richardson, from Wake; prostitution; verdict, guilty;
appeal by defendant ; affirmed.
111. State V. Sau.ls,' from Wilson; incest; verdict, guilty; appeal
by defendant ; affirmed.
112. State V. Sigman, from Catawba; liquor; verdict, guilty; ap-peal
by defendant ; affirmed.
14 BIENNIAL KEPORT OF THE ATTORNEY GENERAL
113. State V. Steele, from Union; murder, first degree; verdict,
guilty; appeal by defendant; affirmed.
114. State V. Strickland, from Sampson; liquor; verdict, guilty;
appeal by defendant; affirmed.
115. State V. Thompson, from Orange; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
116. State v. Trott, from Catawba; murder, second degree; verdict,
guilty; appeal by defendant; affirmed.
117. State V. Tucker, from Iredell; liquor; verdict, guilty; appeal
by defendant; new trial.
118. State V. Willie, from Jones; assault with deadly weapon;
verdict, guilty; appeal by defendant; affirmed.
Docketed and Dismissed
119. State V. Davenport, from Tyrrell.
120. State v. H. V. Baker et al., from Perquimans.
121. State V. Albert Eoyall, from Forsyth.
122. State v. Albert Myers, from Davidson.
123. State v. Sam Howard, from Orange.
124. State v. Ashley ISTorris, from Harnett.
125. State v. A, A. Fonts, from Davidson.
126. State v. Elvin Sparrow, from Lenoir,
127. State v. Howell Solly, from Orange.
128. State v. Chas. Thomas Gaddy, from Anson.
129. State v, Ed Myers, from Anson,
130. State v, Omar Williams, from Davidson.
131. State V. Cromer, from Stokes.
132. State v. Fletcher, from Guilford.
133. State v. John Quails, from Davidson.
134. State v. J. A. Hinson, from Richmond.
135. State v. A. D. Cordell, from Buncombe.
FEBRUARY TERM, 1926
136. State v. Adams, from Gates; liquor; verdict, guilty; appeal
by defendant ; affirmed.
137. State v. Andrews, from Alamance; bus law; special verdict;
appeal by State; affirmed.
138. State v. Ballengee, from Caldwell; gaming, judgment arrested.
139. State v. Banks, from Buncombe; jail breaking; verdict,
guilty; appeal by defendant; affirmed.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 15
140. State v. Best, from Cabarrus ; manslaughter ; verdict, guilty
appeal by defendant ; new trial.
141. State V. Brinkley, from Cabarrus; seduction; judgment
arrested.
142. State v. Brown, from Duplin; malicious injury; verdict,
guilty; appeal by defendant; affirmed.
143. State v. Buck, from Gates ; liquor ; verdict, guilty ; appeal by
defendant ; affirmed.
144. State v. Corpening, from Caldwell ; bad check ; special verdict
appeal by State; affirmed.
145. State v. Dail, from Perquimans; larceny; verdict, guilty; ap-peal
by defendant ; affirmed.
146. State v. Dail, from Perquimans; accessory before fact; ver-dict,
guilty ; appeal by defendant ; affirmed.
147. State v.< Dail, from Perquimans; larceny; verdict, guilty;
appeal by defendant ; affirmed.
148. State v. Ferguson, from Halifax; juvenile delinquency; ver-dict,
guilty; appeal by defendant; new trial.
149. State v. Hensley, from Yancey; assault with deadly weapon;
verdict, guilty; appeal by defendant; affirmed.
150. State v. Hollingsworth, from Forsyth; false pretense; verdict,
guilty; appeal by defendant; new trial.
151. State V. Home, from Pitt; municipal ordinance; verdict,
guilty ; appeal by defendant ; affirmed.
152. State v. Howard, from Perquimans ; burglary, second degree
;
verdict, guilty ; appeal by defendant ; affirmed.
153. State v. Jones, from Craven; municipal ordinance; special
verdict ; appeal by State ; affirmed.
154. State v. Jones, from Forsyth; murder, first degree; verdict,
guilty ; appeal by defendant ; affirmed.
155. State v. Lakey, from Forsyth; municipal ordinance; verdict,
guilty ; appeal by defendant ; affirmed.
156. State v. Lassiter, from Gates; bribery; verdict, guilty; appeal
by defendant ; new trial.
157. State v. Luquire, from Wake; liquor; verdict, guilty; appeal
by defendant ; affirmed.
158. State v. Mansel, from Buncombe; rape; verdict, guilty; ap-peal
by defendant ; affirmed.
159. State v. Matthews, from Harnett; murder, first degree; ver-dict,
guilty ; appeal by defendant ; new trial.
160. State v. Maultsby, from Brunswick; tick eradication; verdict,
guilty ; appeal by defendant ; affirmed.
161. State V. Messer, from Haywood; manslaughter; verdict,
guilty; appeal by defendant; affirmed.
16 BIENNIAL KKPORT OF THE ATTORNEY GENERAL
162. State v. Prytle, from Catawba; murder, second degree; ver-dict,
guilty; appeal by defendant; new trial.
163. State v. Rawlings, from Perquimans; automobile law; verdict,
guilty ; appeal by defendant ; new trial.
164. State v. Rogers, from Davidson; liquor; verdict, guilty; ap-peal
by defendant ; affirmed.
165. State v. Simmerson, from Forsyth.; assault with deadly
weapon; verdict, guilty; appeal by defendant; new trial.
166. State v. Whaley, from Lenoir; automobile law; verdict,
guilty ; appeal by defendant ; new trial.
167. State v. Whitener, from Guilford; murder, first degree; ver-dict,
guilty ; appeal by defendant ; new trial.
168. State v. Wooten, from Watauga; manslaughter; verdict,
guilty; appeal by defendant; afiirmed.
Docketed and Dismissed
169. State v. J. E. Blackburn, etc., from Wayne.
170. State v. J. E. Blackburn, etc., from Wayne.
171. State V. J. E. Blackburn, etc., from Wayne.
172. State v. J. E. Blackburn, etc., from Wayne.
173. State v. Mode Twine, from Gates.
174. State v. Percy B. Kyles, from Eorsyth.
175. State v. Robert Snider, from Davidson.
176. State v. Ernest Fletcher, from Guilford.
177. State v. Willie Trotter, from Davidson.
178. State v. S. G. Pappas, from Buncombe.
179. State v. Thomas Humphries, from Buncombe.
180. State v. Lillie Jackson, from Buncombe.
181. State V. Ed Smathers, from Jackson.
SUMMARY OF CASES
Afiirmed on defendant's appeal - 90
JSTew trial or reversed on defendant's appeal 27
xlfiirmed on State's appeal .-. 3
Reversed on State's appeal 1
Motion to reinstate denied 2
Judgment arrested 2
Appeal dismissed 56
Total .:.- - : - 181
CRIMINAL STATISTICS
STATEMENT A
The Following Statement Shows the Criminal Cases Disposed or During the
Fall Term, 1924, and Spring Term, 1925
Counties
Alamance
Alexander
Alleghany
Anson
Ashe.- --
Avery.- _
Beaufort
Bertie
Bladen.
Brunswick
Buncombe...
Burke
Cabarrus
Caldwell
Camden
Carteret
Caswell
Catawba
Chatham
Cherokee
Chowan
Clay
Cleveland
Columbus
—
Craven
Cumberland.
Currituck
Dare
Davidson
Davie
Duplin
Durham
Edgecombe-
.
Forsyth
Franklin
Gaston
Gates
Gfaham
Granville
Greene
Guilford
Halifax
Harnett
Haywood
H^enderson...
Hertford
Hoke
Hyde
a
1 O
Indian "3 Female
Convicted
T3
'5
<
—
"o
2;
Otherwise
Disposed
of
155 97 242 10 170 32 48 2
52 5 54 3 48 8 1
29
50
4
136
31
182
2
4
28
117
5
22 47
66
49
30
34
65
46
69
176
1
5
2
5
61
43
69
134
3
8
2
22
2
2
41
147 25
14
9
478
26
23
167
40
31
570
1
75
40
30
445
2
200
115 30 140 5 141 2 2
150 59 200 9 140 22 47
49
8
19
7
66
15
2 65
11
3
2 2
15 28 39 4 42 1
40
125
39
21
77
139
2
7
77
142
2
2 2
90 102 180 12 147 27 15 3
89 6 1 95 1 77 16 3
12
35
14
7
25
39
1
3
20
24
6
5 13
84 30 111 3 76 24 14
107 53 157 3 97 43 20
40 50 86 4 42 26 20 2
85 55 1 133 8 91 23 25 2
1
20
6
7
7
24 3
7
26 1
112 43 152 3 136 12 7
35 9 40 4 38 1 5
150 130 258 22 149 51 78 2
251 195 412 34 245 66 134 1
39 103 134 8 114 16 12
349 288 566 71 523 49 60 5
31 34 64 1 47 14 4
273 76 331 18 315 34
22 47 65 4 51 11 7
26
47
25
122
1
5
9
91 14
17
80 22
23 27 48 2 30 13 6 1
260 221 439 42 322 56 96 7
65
70
155
27
214
95
6
2
220
70 14 11 2
198 14 193 19 78 27 103 4
76 28 95 9 88 9 7
35 77 109 3 76 22 14
12 24 2 38 26 10 2
32 25 57 49 2 6
252
57
33
186
66
51
71
181
40
32
645
145
209
68
15
43
79
146
192
96
26
42
114
160
90
141
7
27
155
44
280
446
142
637
65
349
69
26
127
50
481
220
97
212
104
112
38
57
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL
STATEMENT A—Continued
Counties
a
Colored
',
j
Indian
i 1
S
Convicted Acquitted
o
JS
"3
Otherwise
Disposed
of o
o o HO
Iredell _.. 50
27
55
18
67
66
122
67
82
32
112
643
71
114
47
76
44
21
20
74
13
35
36
24
59
50
55
190
123
45
76
55
93
148
20
16
71
159
50
100
32
18
73
434
13
9
94
26
208
125
55
44
26 71
27
93
57
182
145
130
67
83
43
122
1,065
70
164
143
152
126
115
47
172
35
58
85
107
104
131
72
260
210
167
151
83
106
246
67
30
95
165
57
116
60
50
123
866
39
26
99
79
214
217
59
44
5
4
1
2
24
3
1
5
9
97
3
7
6
9
12
4
3
6
1
11
16
1
6
5
7
4
6
3
6
6
11
3
4
8
4
5
3
4
60
1
1
3
6
28
64
3
54
19
69
49
152
113
92
51
87
43
79
733
46
101
106
87
138
64
47
134
34
45
65
104
105
89
43
138
160
94
147
75
88
204
50
33
79
140
44
93
43
27
75
648
23
20
71
84
156
133
62
22
8
2
21
6
14
33
5
5
1
14
6
6
3
18
23
36
12
1
76
27
Johnston
Jones
42
40
117
103
11
1
6
11
19
519
2
57
102
85
94
98
30
104
23
23
60
99
46
87
22
77
91
56
78
34
19
109
42
17
28
14
7
21
28
35
54
492
27
18
8
59
34
156
7
72
5
4
97
58
184
169
133
68
88
43
McDowell
Mecklenburg*
Mitchell
15
78
5
23
10
15
36
338
22
47
31
59
1
17
2
131
1,166
73
Montgomery 171
149
Nash 161
138
Northampton 33
3
12
2
13
9
12
21 1 119
50
32 178
36
58
21
7
1 96
Perquimans.-. --_ 123
105
Pitt 29
3
17
22
12
7
3
23
28
10
19
27
111
32
67
4
1
137
Polk 77
Randolph
Richmond
267
214
173
154
9
1
25
6
2
1
89
Rutherford _. 112
257
Scotland...
Stanly
67
33
Stokes 11
19
17
16
9
13
22
130
11
3
3
1
12
25
9
12 2
99
173
61
Transylvania
Tyrrell
10
8
9
30
144
6
4
27
2
4
5
1
121
60
53
Vance.- _ 127
Waket 927
Warren...
Washington
Watauga.
Wayne
Wilkes
40
27
102
85
74
123
242
281
Yadkin 62
6 16 44
Totals 8,494 6,122 85 13,791 910 10,545 1,471 2,609 81 14,706
* 4 Corporations. t 1 Corporation.
BIENNIAL KEPORT OF THE ATTORNEY GENERAL 19
Recapitulation of Statement A
Total Number Criminal Actions Disposed of .
Males
Females
Corporations-
Total-
White
Colored
Indians
Corporations-
Total- --
Convictions, including submissions-
Acquitted
Nolle pros
Otherwise disposed of
Total-is,
791
910
5
8,494
6,122
85
5
10,545
1,471
2,609
81
14,706
14,706
14,706
14,706
20 BIENNIAL REPOKT OF THE ATTORNEY GENERAL
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36 BIENNIAL KEPOET OF THE ATTORNEY GENERAL
STATEMENT C
The Following Statement Shows the Criminal Cases Disposed of Dtthing the
Fall Term, 1925, and Siring Term, 1926
Counties
2^
d
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d
'5 Female
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Alamance 127
55
21
75
76
60
18
27
6
24
611
141
67
94
8
21
13
136
92
34
13
64
99
188
17
101
21
15
146
35
90
236
63
273
32
393
23
. 21
47
15
233
82
67
102
128
49
6
6
34
57
50
26
72
6
1
154
2
5
19
130
14
9
214
39
42
24
7
21
11
17
83
3
11
6
22
90
43
80
12
11
43
16
134
177
104
208
37
83
33
2
1
1
188
61
19
227
74
58
35
142
20
31
761
178
106
113
14
42
24
148
173
39
24
69
116
269
53
174
31
22
178
47
219
375
152
460
68
447
55
20
131
51
374
258
102
98
181
125
28
26
56
63
84
63
11
3
2
4
7
2
15
2
64
2
3
5
1
5
7
1
5
9
7
8
2
4
11
4
6
38
15
21
1
29
I
1
5
1
23
14
6
10
14
8
2
9
1
1
2"
4
156
61
17
147
68
54
31
117
20
14
586
129
82
109
5
42
18
140
144
20
20
27
81
190
36
99
21
19
162
36
135
264
91
418
44
285
38
11
89
34
330
208
67
43
131
76
19
25
41
33
64
56
18 25 199
61
Alleghany 2
20
8
8
6
22
3
64
1
3
3
1
22
234
78
65
37
17 1 157
Bladen 20
Brunswick
Buncombe
Burke
16
34
9
12
2
3
3
205
42
14
5
7
1
2
33
825
180
109
Caldwell, _. 118
15
42
2
1
7
7
4
6
9
43
7
43
10
3
7
7
21
37
22
51
4
32
7
2
21
15
22
36
13
22
11
20
8
4
15
13
4
4
12
29
11 1
24
Catawba _ - . 153
Chatham 180
39
24
Clay 37
25
33
17
40
2
4
15
8
68
105
54
11
20
158
11
8
23
3
44
27
28
43
49
37
1
10
12
15
9
7
6
12
5
1
8
1
1
1
3
2
1
4
2
1
70
Cleveland
Columbus
121
278
60
Cumberland
Currituck
182
33
26
Davidson 189
51
225
Durham^
Edgecombe
Forsyth , _ .
414
167
481
69
476
56
21
Granville ..- 89
37
164
190
41
6
67
84
23
29
23
7
36
41
1
136
52
Guilford^ 398
272
108
Haywood
Henderson
Hertford...
198
195
133
Hoke- - 30
Hyde 35
57
64
Johnston
Jones
86
67
BIENNIAL REPORT OF THE ATTORNEY GENERAL 37
STATEMENT C— Continued
Counties
-2
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Lee 73 82 152 3 124 19 12 155
Lenoir 128 77 188 17 116 43 46 205
Lincoln 108 30 134 4 101 11 25 1 138
McDowell 156 38 188 6 137 10 47 194
Macon 115 10 118 7 74 13 38 125
73 5 75 3 74 4 78
Martin 8 9 15 2 13 2 2 17
Meclvlenburg 607 518 1,039 86 677 102 335 11 1,125
Mitchell 82
65
81
108
1
5
36
65
3
21
42
27
1 82
Montgomery 48 113
Moore 63 40 1 102 2 36 6 61 1 104
Nash 56 76 123 9 63 30 37 2 132
25 57 79 3 82 82
Northampton 43 89 128 4 76 30 24 2 132
62
155
56
126
113
273
5
8
118
170
118
Orange 18 75 18 281
27
18
29
8
52
25
4
1
32
21
7
5
17 56
Pasquotank __
Pender
26
28 35 60 3 33 11 18 1 63
Perquimans 34 81 113 2 84 8 23 115
Person 68 69 1 127 11 89 20 29 138
Pitt 106 131 225 12 130 56 51 237
Polk 135 36 157 14 117 10 42 2 171
Randloph 294 73 355 12 198 15 152 2 367
Richmond 133 78 206 5 138 10 60 3 211
Robeson 93 64 47 202 2 117 35 52 204
Rockingham 65 42 102 5 86 11 10 107
42
39
26
15
63
52
5
2
64
43
4
8
68
Rutherford 3 54
Sampson 169 149 307 11 222 47 49 318
Scotland 27 13 40 24 10 6 40
Stanly 46 17 62 1 55 5 2 1 63
Stokes 57 16 72 1 U 6 3 73
Surry 161 16 173 4 161 15 1 177
Swain 97 1 16 109 5 57 30 27 114
123 47 162 8 141 29 170
Tyrrell 6 4 10 6 4 10
Union'* 27 28 52 3 32 6 17 1 56
Vance 55 52 100 7 71 20 16 107
Wake^ 296 378 634 40 419 131 124 3 677
Warren 20 44 58 6 42 10 12 64
Washington 7 13 18 2 9 7 4 20
76
40
8
64
80
95
4
9
62
95
2
3
19
6
1 84
Wayne 104
Wilkes.- 350 28 339 39 214 37 123 4 378
Wilson 164 198 321 41 183 41 136 2 362
Yadkin 68 8 74 2 66 6 4 76
Yancey 85 2 86 1 41 14 30 2 87
Totals 9,213 5,859 70 14,319 823 10,231 1,623 3,180 119 15,153
^ 5 Corporations. 1 Corporation. ^ 1 Corporation. * 1 Corporation. ^ 3 Corporations.
38 BIENNIAL BEPOBT OF THE ATTORNEY GENERAI,
Recapitulation of Statement C
Total Number of Criminal Actions Disposed op.
Males
Females
Corporations.
TotaL
White-.
Colored
Indians
Corporations-
Total...
Convictions, including submissions-
Acquitted
Nolle pros
Otherwise disposed of
Total-
14,319
823
11
9,213
5,859
70
11
10,231
1,623
3,180
119
15,153
15,153
15,153
15,153
BIENNIAL REPORT OF THE ATTORNEY GENERAL 39
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BIENNIAL REPORT OF THE ATTORNEY GENERAL 55
STATEMENT E
Number of criminal actions disposed of
Males
Females
Corporations- -
Totals
White
Colored
Indians
Corporations
Totals
Convictions, including submissions
Acquitted
Nolle pros
Otherwise disposed of
Totals
Murder—first degree
Murder—second degree
Manslaughter
Rape
Assault with intent to rape
Arson
Burglary—first degree
Burglary—second degree- . _,
Forgery
Larceny
Intoxicating liquors
Other crimes and misdemeanors
Totals
From
July 1, 1924
to
July 1, 1925
From
July 1, 1925
to
July 1, 1926
14,706 15,153
13,791 14,319
910 823
5 11
14,706 15,153
8,494 9,213
6,122 5,859
85 70
5 11
14,706 15,153
10,545 10,231
1,471 1,623
2,609 3,180
81 119
14,706 15,153
15 8
239 207
84 105
15 14
78 59
15 16
50 46
309 282
1,945 2,208
4,480 4,927
7,476 7,281
14,706 15,153
56 BIENNIAL REPORT OF THE ATTORNEY GENERAI,
STATEMENT F
Alphabetical List of Crimes
Name of Offense
Abandonment-
Abduction
Abortion
Affray
Arson
Assault and battery
Assault with deadly weapons
.
Assault with intent to rape ..
Attempt to burn dwellings
Attempt to poison
Bastardy
Bigamy
Bribery
Buggery
Burglary—first degree
Burglary—second degree
Burning other than arson
Carrying concealed weapons
—
Compounding felony
Concealing birth of child
Conspiracy.-
Counterfeiting
Cruelty to animals
Disorderly house -
Disposing mortgaged property .
Disturbing meetings
Election laws
Embezzlement
Escape
Failure to list taxes
Failure to work public road-
False pretense
Fish and game laws
Food and drug laws
Forcible trespass
Forgery
Fornication and adultery
Gambling or lottery
Health laws
Housebreaking
House burning
Incest
Injury to property
Intoxicating liquors .-
Larceny and receiving
Libel
License, practicing profession without-
License, doing business without
Manslaughter
Military laws
Municipal ordinances
Murder—first degree
Murder—second degree
Nuisance
Obstructing public highway
Obstructing river. --
From
Julyl,1924
to
Julyl,1925
174
25
9
209
15
618
1,292
78
From
Julyl,1925
to
Jylyl,1926
50
5
749
29
334
112
111
97
100
5
34
169
20
9
158
309
231
415
3
618
18
18
95
,480
,945
1
21
15
239
206
46
4
214
16
669
1,332
59
46
13
626
6
46
1
27
231
137
110
4
117
48
15
24
179
34
6
129
282
247
257
10
725
11
22
66
4,927
2,208
10
16
105
207
71
5
2
BIENNIAL REPORT OF THE ATTORNEY GENERAL 57
STATEMENT F~Continued
Name of Offense
From
Julyl,1924
to
Julyl,1925
From
Julyl,1925
to
Julyl,1926
6
27
15
108
7
97
7
66
29
88
1,162
8
Perjury- 31
Rape - 14
100
Riot . . . _ _ 54
Robbery . . . 96
School laws - - - - 12
Seduction 71
Slander 18
Trespass 96
Miscellaneous. 1,071
Totals 14,706 15,153
58 BIENNIAL REPORT OF THE ATTORNEY GENERAL
Fees Transmitted by Attorney General to State Treasurer from August Term, 1924, Through February
Term, 1926
1 State V. Jones
49 State v. Dickerson
50 State v. Pressley _
83 State v. Farmer _.
87 State v. Elias Rabil
148 State v. Godette.... __._
241 State v. Hartsfield
254 Lacy v. Globe Indemnity Co
273 State v. Galloway, et al .
274 State v. Lutterloh __, .._
324 State v. Durham
326 State v. Burke .
328 State v. Rose
347 State v. Johnston _..
349 State v. Edwards
328b State v. Beavers
417 State v. Hammond
419 State v. Knight ._.-._-_.._-_______..... ...
421 State V. Holder
449 State v. Mitchem .
84 State v. Judd
350 State v. George
481 State v. Weddington
482 State v. Hilton
270 State and City Bank and Trust Company v. Doughton .
582 State v. Roberts
88a State v. McLamb ,
348 State v. Roberts, et al
50 State v. Denson, et al...
116 Young V. Highway Commission
147 State V. Dove
209 State v. Hughes and Best
210 State v. McAfee
241 State v. Clifton Dickerson
242 State v. Sinodis
273 State v. C. W. and Elmer Stewart
274 State v. T. E. Cooper
275 State v. Malpass
322 State V. Barbee .•_
321 State v. Bradsher
345 State v. Jarrett
State V. Rufus Self
377 State v. Palmore
449 State and City of Charlotte v. Stowe
521 State v. Miller
547 State v. Marion Ray
3 State v. William and Oscar Horton
4 State V. Baker, et al
43 State v. Sauls.. _
42 State v. Flood .
44 State v. Griffin
345 State v. Albert Royall
82 State v. Carivey
93 In re: Inheritance Tax v. Estates of Burwell and Davis
147 State v. Claude and James Willie
209 State V. Strickland
241 State v. Richardson
242 State v. Jackson
322 State v. Thompson
346 State v. Neal
13.30
14.40
14.40
10.00
10.00
14.40
13.30
11.00
23.20
14.40
12.20
12.20
12.20
13.30
13.30
15.50
15.50
13.30
23.30
14.40
12.20
17.70
12.20
12.20
7.70
14.40
12.20
24.40
25.50
12.10
13 .30
25.50
12.20
13.30
14.40
26.60
23.20
16.60
12.20
15.50
13.30
10.00
18.80
13.30
12.20
12.20
24.50
20.00
16.00
11.50
13.00
10.00
13.00
6.00
27.50
14.50
14.50
14.50
14.50
14.50
BIENNIAL REPORT OF THE ATTORNEY GENERAL 59
Fees Transmitted —Continued
378 State v. Brodie
483 State v. Trott
484 State v. Sigman
486 State v. Abernethy
487 State V. Moore
3 State V. Hartsell and Howard
4 State V. Nathan Dail
5 State V. Nathan Dail
6 State V. Walter Dail
139 State v. Jones
140 State v. J. L. Home
209 State v. Whaley
210 State V. Brown
241 State v. Luquire
273 State v. Maultsby
7 State V. Buck
8a State v. Adams
346 State v. Fred Jones
348 State v. Lakey and wife
521 State V. Hensley -
522 State v. Wooten
548 State v. Herman Banks
549 State V. Lillie Jackson
571 State v. Melvin Messer
Totals
19.00
23.50
13.00
13.00
13.00
30.50
14.50
13.00
16.00
10.00
13.00
16.00
17.50
14.50
14.50
13.00
13.00
19.00
13.00
14.50
16.00
17.50
10.00
16.00
S 1,273.80
OPINIONS TO THE GOVERNOR
Pabdok—Conviction
December 31, 1924.
It seems that W. R. Walker submitted to a verdict of guilty under a charge
of misdemeanor in the Guilford County Superior Court. Judgment was en-tered
against him by the presiding judge, directing his imprisonment in
the common jail of Guilford County for twenty days. Appendant to this
judgment was an order that capias was to issue only upon direction of the
court.
Application has been made to you for the pardon of Walker. Upon this
you inquire whether you have authority to pardon in such a case if you
should determine to exercise that power. Section 6 of Article 3 of the
Constitution confers power upon you to grant reprieves, commutations and
pardons after conviction. There has' been some discussion in the decisions
of the North Carolina Supreme Court as to whether or not the term "con-viction"
as thus used includes not only a verdict of a jury but also the
judgment of the court. In arriving at a conclusion in this case, however,
it is not necessary for us to enter into that discussion, because it is plain
that there was both a verdict of guilty, or what was its equivalent, sub-mission,
and a judgment in this case. The judgment here, then, was nol
suspended, but its execution was delayed. It was a direct judgment sen-tencing
Walker to jail for twenty days', with the execution of the judgment
delayed until further orders of the court.
In North Carolina the time at which a sentence shall be carried into ex-ecution
forms no part of the judgment of the court. So, we have here a
complete judgment, with its execution delayed, and consequently, we think
yon have authority under the Constitution to pardon this man if you should
determine it to be such a case that pardon should issue. The North Carolina
authorities in point are State v. Cockerham, 24 N. C, 204; State v. McClure,
61 N. C, 491; State v. Cardioell, 95 N. C, 643; State v. Yates, 183 N. C, 753,
and State v. Vickers, 184 N. C, 676.
BXTEADITION PU'GITI\'E FROM JUSTICE
January 29, 1925.
In the matter of the extradition from Kentucky of 8. L. Williams
As Mr. Richardson, the former Private Secretary, had consulted me ovev
the 'phone in regard to this matter previously, the Attorney General has
turned it over to me for reply.
At this former conversation with Mr. Richardson, my understanding was
that there was an attempt to bring Williams back from Kentucky under
the original extradition proceedings after he had been brought back to North
BIENNIAL REPORT OF THE ATTORNEY GENERAL 61
Carolina and had been tried and sentence passed upon liim. Wliat 1 told
Mr, Richardson amounted only to this: That there must be some new
crime or some new cause for extradition before Williams could be extradited
a second time. I did not see the papers in the case at that time. After
examining the papers, it is quite clear that there are two ways by which
Williams can be extradited from Kentucky:
First,, It is quite clear that an indicted or convicted prisoner who escapes
may be a fugitive from justice. It is no less clear that one convicted of a
crime who has been paroled and violates said parole by escape to another
statQ may be extradited therefrom. But the demand for extradition must
be based upon an adequate showing of these facts. It appears from the
papers that when Williams was brought back under the former extradition,
he plead guilty to the charge of abandonment in the Mecklenburg County
Superior Court. The judgment was that he be confined in the common
jail of Mecklenburg County for a period of two years, to be assigned to work
on the public roads of said county, capias not to issue so long as he observed
the following conditions: "First, that he pay the costs of this action, in-cluding
the fees for extradition expenses; second, that he live with his wife
and family 'continuously hereafter; third, that he care for and support them
in a husband-like manner; fourth, that he give a good bond in the sum of
$1,000 to make his personal appearance at each May term of this court for
a period of five years, and show the court at each time that he has; complied
with the conditions upon which this sentence is arrested." It seems that
Williams had violated the conditions of this judgment and returned to Ken-tucky,
and there is some demand for his second extradition. Upon a proper
showing of these facts-, it is clear that the Governor of North Carolina may
demand this extradition under the principles above set out. See In re Wm.
B. Hughes, 61 N. C, 58,
Second, It appears that Williams not only abandoned his wife and failed
to support her, but also a minor child. This was the basis of the original
charge. In addition, however, to this abandonment, there was a second
abandonment, apparently after the judgment of the court above set out was
entered. In other words, this second abandonment was a new crime for
which he could be extradited if proper papers are presented to the Governor
of North Carolina. State v. Davis, 79 N. C, 603; State v. Hannan, 168 N. C,
215; State v. Beam, 181 N. C, 597.
Again, the Supreme Court has held. State v. Bell. 184 N. C. 701:
Within the intent and meaning of C. S. 4447, the willful aban-donment
by a father of his children of the marriage is made a
separate offense of like degree with that of his willful abandon-ment
of his wife; and his duty to the children is not lessened by '
the fact that a decree of absolute divorcement has been obtained,
the obligation to support his own children continuing after the
marriage relation between him and his wife has been severed
by the law.
In the light of this decision, then, it makes no difference whether the divorce
obtained by Williams in Kentucky on July 17, 1924, was valid or not.
62 BIENNIAL REPORT OF THE ATTORNEY GENERAL
We are, therefore, clearly of the opinion that the Governor of North Caro-lina
may, upon a proper showing, demand the extradition of Williams again,
first, because he is a fugitive from justice in avoidance of valid sentence of
the court; and second, because he has committed a new crime since his
former extradition and has fled from the State's jurisdiction after the com-mission
of that crime.
Railroad Police
February 6, 1925.
You inquire if commissions issued by Governor Morrison to railway police-men
under the provisions of C. S., 3484 to 3488 expired with the end of his
term of office, and if Governor McLean should issue new commissions to
those officers as a consequence. My reply is that the commissions so issued
by preceding Governors do not terminate with their terms of office but con-tinue
in force unless and until terminated in some other way. These com-missions
issued by preceding Governors are still in force and will so con-tinue
until otherwise terminated.
You further inquire if the Governor has power to terminate these com-missions
at will. My reply is that he does have such power. Under the
sections of the statutes referred to, the duration of these appointments is
not prescribed. It is the universal rule that where the duration of the office
is not prescribed 'by the law creating it or providing for the appointment of
the incumbent, the power to remove is an incident of the power to appoint.
The law provides that the company upon whose request the appointment is
made may file a notice that it no longer requires the services of any police-man
so appointed and thereupon the powers of such officers shall cease and
determine. This does not mean that these officers are appointed simply at
the will and pleasure of the particular companies as named in C. S. 3484.
Necessarily, the legislative body had in mind in passing this act that the
power to remove such policemen would be an incident of the power to appoint
and, therefore, did not specifically set out that the Governor might terminate
these commissions at his will. I, therefore, advise you that the Governor
may recall the commissions issued to the policemen so appointed by him
under the provisions of the above mentioned sections of the Consolidated
Statutes.
You also inquire if the Governor may make these appointments for a def-inite
period, such as two years. In my opinion he may do so, subject, ol
course, to the provisions of the statute allowing the companies for which
they are appointed to file a notice to terminate the services of these oflacers,
as set out in C. S. 3488, and also subject to the power of the Governor to
revoke the commissions so issued for a period of two years when in his
judgment such action should be taken.
biennial report of the attorney general 63
Extradition—Fugitive from Justice '•'j.':.; s:.;^
February 13, 1925.
In the matter of the extradition of Chas. L. Fake
It appears that Chas. L. Fake, whose extradition is demanded by the State
of New York under a charge of desertion of his two minor children, has been
a resident of the State of North Carolina since 1918. Previous to his com-ing
to the State of North Carolina he married in the State of New York on
November 8, 1910, and had by his wife two children. His wife refused to
live with him in North Carolina and he obtained a divorce in the State of
North Carolina in February, 1921, from the bonds of matrimony.
In July, 1922, Fake visited his relations in New York and while there was
arrested under a charge of desertion of his minor children. He gave bond
and returned home immediately. Through the intervention of the district
attorney in whose court the bill of indictment had been found against him he
was allowed to settle the matter without returning to the State of New York,
by paying his wife, who then lived in New York, the sum of $500, and to the
St. Joseph's Infant Home, which had the custody of his minor children, a
like sum of $500. Thereupon, all proceedings under the bill of indictment
were stopped and he was released from further liability for the support of
those children, his wife in the agreement assuming the future support of
those children.
It is manifest from this recital that Mr. Fake has not been back to the
State of New York since his arrest, but that the whole proceedings were
quashed and the matter was settled without his return to that State. The
indictment upon which the State of New York demands the extradition of
Mr. Fake was found on October 29, 1924, and charges the desertion and non-support
of his minor children, which is a felony under the laws of the State
of New York. Since Fake's return from the State of New York in July,
1922, he has not been in the State of New York. The general rule as laid
down by the United States Supreme Court in quite a number of cases is.
among other things, that the governor of the state from whom the alleged
fugitive is demanded may determine in the first instance whether or not the
alleged fugitive so demanded is in reality a fugitive from justice within
the meaning of the Federal Constitution and of the Act of Congress enacted
in pursuance thereof. We think it very clear that under the circumstances
here recited, Mr. Fake is not a fugitive from justice of the State of New
York and consequently, you may refuse the demand upon you for his ex-tradition
by that State.
North Carolina Railroad—Principal Office
February 16, 1925.
Your letter of February 10th, enclosing a letter of Mr. Alexander Webb
to the Governor, dated February 7th, was referred by the Attorney General
to me for investigation. I have investigated the matter as fully as I could
in the crowded condition of work in this office and have come to the conclu-
64 BIENNIAL REPORT OF THE ATTORNEY GENERAL
sion that there is nothing in the charter of the North Carolina Railroad
Company which provides that the company's principal office shall be at Bur-lington,
N. C. Indeed, the by-laws of that company, in section 3 of the chap-ter
headed "Directors'," is in the following form:
The board of directors shall meet at least once in two months
at Burlington, or at such other place as they may direct, which
meetings shall take place on the third Fridays of August, Oc-tober,
December, February, April and June, in each year, and
the president shall be at liberty to convene the board as much
oftener as the interest of the company may require.
This indicates, of course, that these directors may meet at any other place
than Burlington at their discretion. Section 1 of the by-lawsi declares:
The general annual meeting of the stockholders shall be held
alternately at Greensboro, Raleigh, Salisbury and Hillsboro on
the second Thursday of July in each and every year until other-wise
ordered.
There is nothing in these by-laws, a copy of which is before me, which fixes
Burlington as the principal place of business of the corporation though for
convenience no doubt that has been for years the place where offices were
kept. They were originally located at Burlington because there was estab-lished
the shops of the company. So unless Mr. Webb knows of some specific
provision requiring the company's principal office to be maintained at Bur-lington,
which we have been unable to find, there is no requirement that it
should be maintained at that particular place and it will not be necessary
to amend the charter to permit the directors to remove the office to some
other point.
It would be necessary under the law as it is written now, C. S. Section
6547, to obtain the permission of the Board of Internal Improvements for
the sale of the office building of the company now located in the city of
Burlington, as it is said that a bill is now pending before the General As-sembly
which repeals the chapter of the Consolidated Statutes which estab-lishes
the Board of Internal Improvements (Chapter 107), it would be
necessary, if the General Assembly legislates upon the point, to obtain the
consent of the body or board which the Legislature substitutes in the place
of the Board of Internal Improvementsi, to the sale. Out of an abundance of
caution, however, in drafting the bill which im_poses this duty upon some
other board or commission, it might be well to include therein authority to
the board of directors to change the company's principal office from Bur-lington,
N. C, to some other point on the railroad more convenient for the
transaction of business, at their discretion. To that end we herewith enclose
a bill which deals with these particular points only.
biennial report of the attorney general 65
Directorates—Appointment—Vacancies
February 21, 1925.
In the matter of aiipointments to fill vacancies on the various hoards, etc.
In accordance with your request, I have investigated your authority to
make appointments and the limitation upon that authority contained in some
of the statutes that the appointment is to be made by and with the advice
and consent of the Senate. The following boards and institutions, so far
as I have been able to investigate, have the vacancies in them filled by the
Governor, by and with the consent of the Senate:
The Board of Agriculture.
The State School for the Blind.
Caswell Training School.
The State Sanatorium.
The State Hospital, Raleigh.
The State Hospital, Morganton.
The State Hospital, Goldsboro.
The Highway Commission.
The Geological Board.
The Fisheries Commission.
This, of course does not take into account any board created by the present
Legislature. It appears that there are not any existing vacancies in any
of the boards or institutions set out above. According to the list furnished
this office by Miss Turner of your office, the first vacancy occurs in the Board
of Agriculture, and that is on March 11, 1925. It is not at all probable that
the General Assembly will be in session at that time. The rule in regard
to filling vacancies where the original appointment is made by the Governor,
by and with the consent of the Senate, is thus defined in Sa'isbury v. Groom.
167 N. C, 223:
The Governor alone under the general power to fill vacancies
conferred by sub-section 3 of section 7636 of the Consolidated
Statutes, may make appointment (to vacancies), when the Sen-ate
is not in session, such action could only be for the interval
until the Senate meets and the two agencies' specially provided
by law, to wit: the Governor and the Senate, shall concur in such
appointment.
Wherever, then, a vacancy occurs in the directorate of any institution or
any board after the adjournment of the Legislature, it makes no difference
how soon after such adjournment, you fill the vacancy by your appointment
ad interim, and report the same for confirmation to the Senate of the Gen-eral
Assembly of 1927. If any vacancy should occur during the session of
1925, the law contemplates that you shall send your appointment to the exist-ing
Senate for confirmation.
66 biennial keport of the attorney general
Extradition—Fugitive from Justice
March 3, 1925.
In the matter of the extradition of William H. Carter
This was a demand by the Governor of Virginia for the extradition of W. H.
Carter under a charge of willful desertion and non-support of his wife
and children. It seems that Carter and his wife were living at Newport
News in the State of Virginia until the latter part of August, 1924. At that
time he left Newport News and came to Windsor, North Carolina. His pur-pose
in coming to North Carolina was to better his condition and he came
with the consent of his wife. There is no conflict between the affidavit of
Josephine Carter, his wife, and his own affidavit. According to the af-fidavit
of W. H. Carter and that of his father, Austin Carter, the former in
moving to North Carolina did better his condition, as they state that he
was unable to make a living in Newport News. He swears that he has at
all times been ready, willing and able to provide for his wife and children
in Bertie County, North Carolina, and has so advised her, but she has at
all times refused to come to North Carolina and demands that he support
her in Newport News, Virginia.
In his affidavit he files also an itemized statement, to which he makes oath,
which, if believed, shows that he sent his wife $20 in September, 1924; $15
in Novem'ber, 1924; $30 in December, 1924; $20 in January, 1925, and also
sent her by his sister, Ella Fields, $27 in January, 1925. The latter statement
is corroborated by the affidavit of Ella Fields incorporated in the evidence
of W. H. Carter. Mrs. Carter herself swears that he has sent her since the
separation only $15. She declares also in her affidavit that she has at all
times since his' departure been willing, and is now willing, to come to North
Carolina to join him, providing he will send the necessary funds with which
to secure clothing and transportation.
Upon the two latter points there is this conflict, then, between the evi-dence
of the wife and the evidence of the husband. They agree, however,
upon the essential fact, that he left Virginia to better his condition and left
his wife with her consent. They further agree that they are both willing
to come together in North Carolina if Carter will send the money to his wife
for transportation expenses. No doubt Carter left Virginia with the intent
to send for his wife and bring her to the State of North Carolina and there
support her.
If this is true, he at no time committed a crime in Virginia and he did
not even begin to commit a crime in that State. The North Carolina Su-preme
Court in In re Sultan, 115 N. C, 57, has held that departure from the
jurisdiction after the commission of the act, in furtherance of a crime sub-sequently
consummated, is a flight from justice within the meaning of the
law. There, a man procured by false representations goods to be shipped to
him in this State from Pennsylvania. After making the false representa-tions,
but before the goods were shipped, he returned to North Carolina.
The Court held that he was a fugitive from justice. The distinction between
that case and this is manifest. The crime in the sense of a willful and un-
BIENNIAL REPORT OF THE ATTORNEY GENERAL 67
lawful act had been begun in the State of Pennsylvania. In this case no
crime had been begun in the State of Virginia. If any crime was committed,
it was committed in North Carolina subsequent to his return to this State.
The Supreme Court in State v. Hall, 115 N. C, 811, holds that there can
be no constructive presence in another state where a crime is alleged to
have been committed. This case is annotated in 28 L. R. A., 289, where it
is declared.
The American cases are unanimous in holding that a person
cannot be a fugitive from justice unless he was in the demand-ing
state when the crime was committed.
For these reasons we think that you would be authorized to refuse the
extradition of Carter under the circumstances above stated.
There is a point, however, if you will permit us to suggest it, at which
all of the difficulties of this husband and wife may be settled. He states
that he is not only willing but anxious to send transportation money to hJs
wife to join him in Bertie County, North Carolina. She states in her af-fidavit
that she is willing to come to North Carolina to be with him if he
will send sufficient money for that purpose. If, therefore, Carter will show
by his' deed in this regard that he is honest in his assertion, there ought to
be no difficulty in bringing this husband and wife together, notwithstanding
the extradition proceedings.
In 32 A. L. A. the subject of the extraditable quality of the act of a hus-band
who abandons and fails to support hisi wife and children located in
another state is fully discussed, particularly in the note at page 1167. The
case annotated was decided by the New York Court of Appeals April 1, 1921.
This case and the note thereto sustain the position advanced in this opinion.
Checks—Insolvent Banks
March 19, 1925.
It seems from the letter of Honorable W. N. Everett, Secretary of State,
to you and the Council of State that he had on deposit in the United Com-mercial
Bank at Plymouth, N. C, $53.50, State funds, deposited during the
month of December, 1924, and $74.50 of deposits of State money for the
month of January, 1925. He had also on deposit in the Martin Savings
Bank and Trust Company at Williamston, N. C, $57.50 of State money. He
checked upon both of the deposits in the United Commercial Bank at Plym-outh,
check being payable to B. R. Lacy, State Treasurer. These checks
were transmitted to the Plymouth bank in due course of business and were
not paid because the bank had become insolvent. The Martin Savings Bank
and Trust Company also became insolvent before the amount deposited there,
$57.50, had been withdrawn. Mr. Everett does not state in his letter how
nor why these amounts were deposited in local banks. We suppose, how-ever,
that one of his agents in the collection of license taxes of some sort
68 BIENNIAL REPORT OF THE ATTORNEY GENERAL .
had collected these amounts and had deposited them in these banks, sub-ject
to his check.
. It is, lof course, unfortunate. It is quite clear, however, that these amounts
should not be carried in the bad check file. That is intended to care for
conditions arising from the giving by individuals of bad checks to that De-partment,
and not from those arising out of the insolvency of a particular
bank in which a deposit is placed. No doubt there is enough in the circum-stances
to appeal to the General Assembly for a refund. In the meantime,
however, we know nothing that can be done in accordance with law except
that Mr. Everett should make good these deposits and recover from these
banks any dividend upon the amount in his own exoneration and later ap-peal
to the sense of justice of the General Assembly to reimburse him for
his actual loss.
State Seal Tax—Date OPEBATrvE
March 20, 1925.
In reply to your inquiry in regard to effective date of section 91, Revenue
Act, 1925, with respect to increased seal tax on commissions therein provided
for, I have to say that this increase becomes operative June 1, 1925. There-fore,
up to and including May 31, 1925, you should charge only $2.00 for the
seal on commissions and thereafter the fee will he |2.50.
Capital Conviction—Act of 1925
—
Reprieve
March 25, 1925.
At the recent session of the General Assembly it, by an act ratified Feb-ruary
24, 1925, provided a substitute for Section 4&63 of the Consolidated
Statutes. Stated broadly, that substitute provides that where an appeal is
taken by a defendant, convicted of a capital crime, to the Supreme Court of
North Carolina and that Court finds' that there was no error in the trial, such
convict is to be executed in the manner provided in the article dealing with
capital execution upon the third Friday after the filing of the opinion affirm-ing
the judgment of the court below. It is made the duty of the Clerk of
the Supreme Court to notify the warden of the Penitentiary of the date of the
filing of the opinion, and thereupon the condemned person is to be executed
on said third Friday after the date of the filing of the opinion affirming
the judgment.
A man named Evans appealed from a capital conviction to the Supreme
Court and the opinion of the Court affirming the judgment upon his convic-tion
was filed on March 4th. The substitute for Section 4663 was not
brought to the attention of the Clerk of the Supreme court until thisi morn-ing,
when he was furnished a copy of that substitute. He, therefore, did
not obey the statute in the particulars hereinbefore set out. If he had had
knowledge of the statute and had obeyed it, the execution of Evans would
BIENNIAL KEPORT OF THE ATTORNEY GENERAL 69
have occurred on Friday, March 20th, which was the third Friday after the
filing of the opinion of the Court, March 4th.
You inquire whether or not you have authority under the Constitution and
laws of North Carolina to grant the prisoner a reprieve for a certain length
of time, to be determined by yourself, such reprieve to commence at a time
anterior to March 20th. The statute further provides that when there is
such reprieve, the prisoner is to be executed upon the third Friday after the
termination of such reprieve and declares that it shall be the duty of the
Governor to give notice to the warden of the State Penitentiary of the date
of the expiration of such reprieve.
The time when punishment is carried into execution under the decisions of
the Supreme Court of this State forms no part of the judgment. Here, then,
is a man sentenced to death in the Penitentiary under a proper judgment
without, however, the time for his execution having been definitely fixed.
It seems quite clear that under these conditions your Excellency may re-prieve
this man, and if you do not care to make the reprieve retroactive to
March 19th, you may let it commence at any time that you may so order,
with his execution to follow on the third Friday after the expiration of such
reprieve.
Budget Bujeau—Pay ov Employees
March 27, 1925.
The budget act makes the Governor of the State ex officio director of the
budget. Section 20 of that act is as follows:
The Director is hereby authorized to secure such special help,
expert accountants, draftsmen, and clerical help as he may deem
necessary to carry out his duties under this act, and shall fix. the
compensation of all persons employed under this act, which shall
be paid by the State Treasurer upon the warrant of the State
Auditor. A statement in detail of all persons employed, time
employed, compensation paid, and itemized statement of all
other expenditures made under the terms of this act shall be re-ported
to the General Assembly by the Director, and all pay-ments
made under this act shall be charged against and paid out
of the emergency contingent fund when such fund is provided in
the general appropriation bill.
Upon this you ask the opinion of this office as to from what funds the
special help provided for in the above section are to be compensated. "We
find upon examination that Sicction 3861(d), 3d Volume C. S., p. 260, author-izes
the Governor and Council of State to employ any additional clerical or
stenographic help in any of the Departments of the State upon written re-quest
of the head of such Department. Unfortunately, however, the amount
of salary which may be fixed under this section is limited by its terms to
$1,800 per annum. This is wholly inadequate to provide the director of the
budget with the help specified in section 20 of the act. The concluding
clause in section 20 declares that all payments made under this act shall be
charged against and paid out of the emergency contingent fund lohen such
70 BIENNIAL REPORT OF THE ATTORNEY GENERAL
fund is provided in the general approijriation act- That fund was provided
in the appropriation act of 1925. It is not, however, available until the end
of the present fiscal year, to wit: on July 1, 1925. This is' apparent from
section 1 of the appropriation act.
The Legislature, however, could not have intended to leave the director
of the budget in this helpless condition for lack of efficient help. It must
have known that any appropriation made in the appropriation act of 1925
would not, and could not, be available until the end of the present fiscal year.
When that is available, then the expenses of the director of the budget as
stated in section 20 may be charged against and paid out of the particular
fund provided for that purpose. Meantime, however, the General Assembly
could not have intended that this minute and particular act should be in-effective
from lack of appropriation. It, therefore, directed that the com-pensation
of all persons employed under this act should be paid by the State
Treasurer upon the warrant of the State Auditor. This, then, can be effec-tive
as a charge against the general funds of the State until the special
fund out of which it isi to be payable becomes available. It requires it to be
paid out of the special fund only when it is provided in the general appropri-ation
hill. It is not provided in the general appropriation bill until the 1st
of July, 1925.
Consequently, we advise that the procedure set out in section 20 be followed
in regard to the employment and compensation of the special help for the
director, and such amounts to be paid out of the general fund of the Treasury
until the special fund 'becomes available.
Notaries—Powers
March 31, 1925.
In re Appointment of B. Stark, Jr. as Notary Public
It seems that Mr. Stark was commissioned as a notary public on February
19, 1925. His application came up from Sampson County and the com-mission
was issued to him in Sampson County. If he qualified before
the Clerk of the Superior Court of Sampson County, and the procedure
set out in Section 3173, C. S., was complied with, then there is no difficulty
at all about his authority to act as notary public though at the time of his
qualification in Sampson County his permanent residence was in Richmond
County.
Before the act of 1891, which is brought forward in C. S. as Section 3176,
the official acts of notaries were probably confined to the county in which
they qualified. Since that act, however, it is entirely clear that they may per-form
the functions of their office during the term for which they are ap-pointed
in any county in North Carolina in which they happen to be at the
time they exercise those functions—provided, of course their actions are
authenticated by their seals.
The act of 1891, Chapter 248, is as follows:
BIENNIAL REPORT OF THE ATTORNEY GENERAL 71
That the power of all persons who are at present notaries public
or who may hereafter he appointed such shall not be limited to
any single county or specified portion of the State, but the said
notaries public shall have full power and authority to perform
the functions of their office in any and all counties of the State
and that full faith and credit shall be given to any of their offi-cial
acts wheresoever the same shall be made and done.
Consequently, Mr. Spark, if he complied with Section 3173, is qualified
to act as a notary anywhere in the State of North Carolina, and not simply
in Sampson County.
Courts—Special Terms
April 2, 1925.
I have received your letter of April 2d, enclosing one from Judge F. A.
Daniels to Governor McLean in regard to the calling of a special criminal
term for Wake County. This office has uniformly held that a regular term
of the courts of a district cannot be displaced by a special term. C. S. Section
1450 gives the Governor authority to call a special term, but declares that
such special term "is not to interfere with any of the regular terms of the
courts of his district." This was held in an opinion of this office dated No-vember
14, 1917, to former Governor Bickett. See biennial report of the
Attorney General, 1916-1918, page 7. Opinion of the Attorney General, Sep-tember
12, 1921, to Judge John H. Kerr.
It is true that if the Governor disregards this restriction and calls a spe-cial
term to be held during the week of a regular term, there is no way by
which the courts can hold his action invalid. State v. Leiois, 107 N. C, 967;
State V. Hall, 142 N. C, 710. If, however, there is any way by which a crim-inal
term can be held in the county of Wake while the civil term continues
and is concurrent with the special criminal term so called, then under Chap-ter
100, Public Laws, Extra Session, 1924, the Governor may call this special
term, appoint a special judge to hold it, and both terms can be held at one
and the same time.
We are not informed as to whether this is the condition in Wake County.
A special term was called in Guilford County under this late act.
Governor—State Automobile—Torts
April 3, 1925.
Memorandum No. 16—In re Insurance on Mansion Automobile
In your letter of April 2d you request answers from this office to the fol-lowing
questions:
(1) What, if any, liability attaches to the State for damage
to persons or property 'from the Mansion automobile when ope-rated
by the chauffeur who is employed by the State?
72 BIENNIAL REPORT OF THE ATTORNEY GENERAL
The State under no conditions is liable for damages occasioned by the de-fault
or neglect of one of its officials or employees, consequently, the answer
to this question is, "None."
(2) What, if any, liability applies to the Governor for dam-age
to persons or property by the Mansion automobile when
operated by chauffeur employed by the State?
As the question is framed, its answer should also be "None." This, how-ever,
might be misleading. If the Governor is riding in the automobile at the
time and does not exercise proper control over the chauffeur so that any
illegal or negligent act of the chauffeur is not prevented, if the circum-stances
should be such as reasonably to require the interference of the
Governor, or is committed either tacitly or directly with his consent, then
under the usual rule it seems that the Governor might be personally liable
for damages inflicted in consequence of such default or neglect. This lia-bility
could arise only, however, when the Governor himself personally had
failed to use the proper care which is imposed upon all persons in the
operation of these machines upon the highway where conditions may arise
that would create danger to the life, limb or property of others. The lia-bility
would arise from the application of the maxim, "So use your own
as not to injure your neighbor"; if there is personal neglect.
Stonewall Jackson Training School—Trustees
April 4, 1925.
In the matter of the appointinent of Ti'ustees of Stoneioall Jackson
Training School
So far as we are informed there are four institutions in the State of
North Carolina for whose support the State makes biennial appropriations
which are not wholly controlled by the State. One is the Oxford Orphan
Asylum for whites at Oxford; another is the Orphanage for Colored Chil-dren
at Oxford, and another is the Slater Normal School at Winston-Salem,
and the last is the Stonewall Jackson Training School at Concord.
It seems that certain private persons were instrumental in the establish-ment
of the latter institution at Concord and reserved the right to appoint
trustees themselves. This is done by conferring upon the board itself au-thority
to appoint a controlling number of the board of trustees. Of course,
the act of 1925, which confers upon the Governor the authority to appoint
all the members of this board and to fill vacancies, cannot affect the rights
of those who were made by the act of the General Assembly of 1907, or their
successors appointed in the way provided by the act, trustees of such insti-tution,
if these trustees and their successors occupied a private relation to
the institution in such sence as that the act of 1925 would destroy such
private right. We, however, do not interpret the situation as conferring
upon these trustees and their successors any such private right as would be
protected by the Constitution of the State.
The appropriations made by the State for the institution have been grad-ually
increased since 1907 from $5,000 annually to $120,000 annually in the
BIENNIAL REPORT OF THE ATTORNEY GENERAL 73
appropriation act of 1923, Chapter 163, P. L. Accompanying the latter annual
appropriation, too, was the sum of $20,000 to pay the debts of the institu-tion.
It is' quite clear, therefore, we think, that those incorporators who
had any private interest in the institution had waived the same by leaving
the support of the institution itself so largely to the State. As a conse-quence,
we think that section 2 of the recent act of the General Assembly
providing for the appointment of a board of trustees of the Stonewall Jack-son
Manual Training School, declaring that it should consist of eleven per-sons
and conferring the power of appointment wholly upon the Governor,
is constitutional and the Governor can act thereunder as a valid law. Par-ticularly
is this true, when the Constitution of 1868 reserves to the State
the power to amend all charters, even of private corporations.
State Institutions—Dibectoes—Geographical Limitations
April 4, 1925.
Referring to the conversation with you over the 'phone this morning, as
to any geographical limitation upon your power to appoint directors or
trustees of a State institution. We have investigated the statutes and find
that the only geographical limitation upon the exercise of this power on
your part is with reference to the three hospitals for the insane and the
Caswell Training School at Kinston. The statute declares tlfat no two of
these appointees shall be residents of the same county. As to all the other
appointments, we find no restrictions at all.
State Institutions—Employees—Appointment
April 4, 1925.
Memorandum No. 18—In re Institutional Apiiolntments
You request this office to examine the charters and other laws governing
the following institutions and advise you whether or not the board of direc-tors
or the superintendent has control of the employment of business man-ager,
steward and other of the more important employees; and whether
or not the duties of the superintendent are so fixed by statute as to pre-vent
the board from electing a business manager to have charge of all the
business affairs of the institution, leaving to the superintendent the pro-fessional
and technical duties of the institution. The names of the insti-tutions
inquired about are herein set out, with the answer to the question
appended to each one:
Caswell Training School, Kinston. The board of directors has control of
the employment of a business manager and other important employees.
There is nothing in the statute with reference to this institution to prevent
this board from electing a business manager to have charge of all the busi-ness
affairs of the institution. See C. S. Section 5894.
State Hospital, Goldsboro. The same answer is given here. C. S. Section
6158; 3d Volume, p. 498, Section 6159(b).
74 BIENNIAL REPORT OF THE ATTORNEY GENERAL
Eastern Carolina Teachers College, Greenville. The same answer is given
here. C. S., 3d Volume, Sections 5863 et seq. p. 465.
State School for the Deaf and Blind, Raleigh. The same answer as to
this institution. C. S. Section 5874.
State Hospital, Morganton. The same answer as to this institution. C. S.
Section 6158; 3d Volume, Section 6159(h).
School for the Deaf, Morganton. C. S. Section 5891, in defining the
duties and qualifications of the superintendent, declares that he shall possess
good, executive ability and shall be the chief executive officer of the insti-tution.
He shall see that the pupils are properly instructed in the branches
of learning and industrial pursuits as provided for in this article and under
the supervision of the board. The board shall elect all teachers and subor-dinate
officers, by and with the consent and recommendation of the superin-tendent.
This manifestly gives the superintendent the very responsible
position of general manager of the institution. We do not interpret the act.
however, as preventing the board from electing a business manager with
the consent and upon the recommendation of the superintendent, with that
business manager to have control only of the distinctively business features
of the institution.
Cullowhee Normal School. We think the board of directors has control
over the employment of a business manager or steward, and that there is
nothing in the statute to prevent its selecting a business manager to have
charge of all the business affairs of the institution. C. S. Section 5839.
Appalachian Normal School. The same answer may be given as to this in-stitution.
C. S. Section 5855.
Negro Agricultural and Technical College, Greensboro. The same answer
may be given as to this institution. C. S. Section 5830.
These answers are based upon the fact that the General Assembly creates
the boards of the particular institutions involved, and gives them general
authority to manage that institution, and does not, except in the case of the
Morganton School for the Deaf, restrict the powers of these various boards.
In the absence of such specific restrictions, the power to elect a business
manager is necessarily included in the general power to manage the par-ticular
institution.
State Prison—Five Year Provision
April 8, 1925.
I have your memorandum of April 7th in which you call my attention to
C. S. 7716, and asked for my opinion thereon. The section is as follows:
All persons convicted of crime punishable by imprisonment in
the State Prison in any of the courts of this State whose sentence
shall be for five years or more shall be sent to the State Prison.
You ask if the penitentiary authorities can refuse to receive prisoners
whose terms are for less than five years and whether the judges of the
Superior Court may sentence prisoners to confinement in the State's Prison
where the imprisonment to be imposed is for a less term than five years.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 75
Felonies are punishable by imprisonment in the State's Prison, and in
many instances these terms may be, and are, for less than five years. For
instance, the minimum term for murder in the second degree is two years
and for manslaughter four months. Where the statute provides that the
punishment may be imprisonment in the State's Prison, the judge sentencing
the prisoner undoubtedly has the right to send him to the State's Prison.
It is equally clear that the penitentiary authorities have no right to refuse
to receive a convict so sentenced.
I construe C. S. 7716 not to limit the right of a judge to send a convict
to the State's Prison where such punishment is otherwise prescribed in
another statute, but to make it obligatory upon him to send such convict
to the State's Prison where under the statute he imposes a sentence of five
years or more. This section does not undertake to repeal the various statutes
providing for imprisonment in the State's Prison. It does not do so directly,
and repeals by implication are not favored.
Capital Conviction—Execution
April 22, 1925.
Referring to my conversation with Mr. Sink last night, I understand that
one of the convicts in the State Prison awaiting execution was reprieved
until Friday, April 10th. You desire a ruling from this oflfice whether upon
the recent statute the first Friday, April 10th, is to be counted in determin-ing
when the execution shall take place. We think it very clear that it is
not to be. The expression used in the statute in that regard is as follows:
In case of a reprieve by the Governor, such condemned person,
convict or felon shall be executed in the manner heretofore
provided by this article upon the third Friday after the ex-piration
or termination of such reprieve.
In the instant case, then, the time automatically fixed for the execution
of this person is Friday, May 1st, excluding thus from the computation the
Friday on which the reprieve expired.
Election—Opening of Polls
April 23, 1925.
I have considered the letter of Mr. E. S. Waddell to you, dated April 20,
1925, and herewith return it.
The general election law, C. S. Section 5976, requires the polls to be
open on the day of election from sunrise until sunset on the same day. This,
however, does not apply to municipal elections because they are regulated
by article 3 of Chapter 56 of the Consolidated Statutes. Section 2664 requires
polls to be open from eight o'clock a.m. until sunset, and no longer. Section
2649 declares what cities and towns the article is applicable to. There are
quite a number of exceptions to the act, but Wilmington and New Hanover
76 BIENNIAL REPORT OF THE ATTORNEY GENERAL
County are not among those exceptions. I have examined the amendments
to the Wilmington charter since the ratification of the Consolidated Statutes
August 1, 1919, and find that this general provision as set out in section
2664 has been in no particular modified.
State Anticipation Notes—Intebest
May 5, 1925.
Memorandum No. 26—Interest on notes issued in anticipation of
Highway Bonds
We have considered carefully the letter of Mr. Masslich to you, a copy
of which was enclosed in yours of May 1st. We are in thorough accord witb
Mr. Masslich's opinion expressed therein in regard to the interest on notes
issued in anticipation of Highway bonds. First, however, it is necessary to
correct a mistake of fact in Mr. Masslich's letter in regard to my attitude
towards this question. The first opinion was written by myself to Price,
Waterhouse & Company while engaged in a State audit in the spring of
1923. The second letter, which I showed Mr. Masslich, was written by
Attorney General Manning himself, and this modified one of the opinions
expressed by me in the previous letter of March 31st. I am sending here-with
copy of our biennial report, 1923-24, which has in it these two letters,
the first at page 278 and the second at page 281.
In addition to what Mr. Masslich said in his letter to you, I desire to call
your attention to the following considerations:
(1) The distinction between a general fund bond issue and a special fund
bond issue is to be found in this: The bond issue in the first instance is
to provide funds to meet appropriations made for some specific purpose.
There the object is to provide money to meet these appropriations. A special
fund, however, is one which is created by the issue of bonds of a specific
amount, with the whole of the proceeds of the sale of these bonds to be used
for the purposes stated in the statute. An illustration of this distinction is
to be found in the Public Laws of 1921 in comparing Chapter 165 thereof,
which was an act entitled "An act to issue bonds for the permanent improve-ment
of certain State institutions," and the State Highway Commission act.
Chapter 2 of the Public Laws of 1921. Chapter 165 directs the issue of bonds
for the purpose stated therein. It is entirely clear that this is a bond issue
for the general fund of the State and all the expense of issuing the bonds,
the premium received upon the bonds and the interest upon notes antici-pating
them, etc., are either credits to the general fund or charges against
the general fund. This is apparent from the fact that the proceeds go into
the State Treasury and from these proceeds certain specific sums named in
the act are allocated to the various educational and charitable institutions
of the State.
(2) When, however, we turn to Chapter 2 of the Laws of 1921—the
State Highway act—we find a difference. Fifty million dollars of bonds are
to be issued and sold. From the proceeds of these bonds there is no specific
appropriation of so much money for a definite purpose. On the contrary,
the whole of the proceeds are to be deposited in a particular fund designated
BIENNIAL REPORT OF THE ATTORNEY GENERAL 77
in the act as the State Highway Fund. It is declared at the end of section
40 of the act, referring to the sale of these bonds:
When sold and turned over to the State Treasurer, all of said
fund to be part of the construction fund and known as the State
Highway Fund.
Again at the end of section 41:
All expenses necessarily incurred in the preparation and sale
of the bonds shall be paid from the proceeds of such sale.
Section 45 deals with the issue of notes in anticipation of the sale of
the bonds. It is apparent that all the expenses of issuing these notes are
to be paid out of the Highway fund and any premium or interest derived
from the sale of such notes is to go into the State Highway fund. It is
declared in the latter part of said section:
The notes issued in anticipation of the sale of the bonds shall
be paid with funds derived from the sale of bonds unless other-wise
provided by the General Assembly. The notes issued for
the payment of interest shall be paid from the funds collected
under this act, as herein provided for, when collected, unless
otherwise provided for by the General Assembly.
From this it is apparent, we think, that the General Assembly in its
scheme of highway construction was creating a special fund which was to
pay its own expenses and take its own profits of all kinds in the sale of
the bonds. There was no appropriation by the General Assembly of any
portion of the proceeds of the bond issue to the Highway scheme, but the
whole bond issue was devoted to that purpose.
State Board of Pharmacy
May 7, 1925.
In the matter of Dr. S. 8. Peterson of Gastonia
It is not possible from Dr. Peterson's letter to you to discover exactly
what he means to do and what he desires you to do. There is a provision
of the statute, 3d Volume of C. S. Section 6667, which gives the State Board
of Pharmacy authority to grant any legally registered practicing physician
a permit to conduct a drug store or pharmacy in a village of not more than
500 inhabitants. This board is further authorized, after due investigation,
to grant a permit to a legally registered practicing physician to conduct a
drug store or pharmacy in a town of more than 500 and not exceeding 600
inhabitants. Nothing in this section, too, shall be construed to interfere
with any legally registered practitioner of medicine in the compounding of
his own prescriptions.
It is manifest from this, we think, that the Board of Pharmacy has not
transcended its authority in asking the questions which it did of Dr. Peterson.
We return herewith Dr. Peterson's letter and the several communications
from Mr. Hancock, Secretary of the State Board of Pharmacy.
78 BIENNIAL REPORT OF THE ATTORNEY GENERAL
UNIVE2RSITY REPLACEMENT OF BoOKS
May 7, 1925.
In the matter of replacement of books in the University Library
The statute in relation to the State furnishing its own publications to the
library of the University of North Carolina is quite minute. C. S. Section
7603, requires the Secretary of State to send three copies of each bound
volume of statutes to that library; Section 7665, three copies of public docu-ments;
Section 7667, three copies of Supreme Court Reports. The latter
section, 7667, was amended at the recent session of the Legislature—H. B.
625, S. B. 558, so as to require five copies of the Supreme Court Reports to
be sent to the University Library. We find nowhere in the statutes any
authority of the State to replace old and worn volumes heretofore presented
by it to the University Library. In the absence of this authority we cannot
advise the Secretary of State to enter upon this replacement.
State Sanatorium—$55,000 Debt
May 14, 1925.
In the matter of the $55,000 debt of the State Sanatorium
The General Assembly of 1923 enacted a law to establish a sanatorium for
tubercular prisoners—Chapter 127, Public Laws. In section 7 of the act
there was appropriated $50,000 for the purchase of land and erection of ade-quate
buildings for the sanatorium for prisoners and convicts. This sum
proved inadequate, so Dr. McCain of the State Sanatorium on August 13,
1924, appeared before the Governor and Council of State and explained the
vital importance of completing and furnishing the prison building of the
Sanatorium. This vital importance arose largely from the fact that after
the purchase of the land and partial completion of the building, the fund
provided for this purpose, i.e. the $50,000 proved inadequate. It would
not do to leave the building in the condition it was because if the work
was stopped, the expense to the State would be largely increased, and it
derived no benefit from the building as it stood.
In consequence of this application, the Governor and Council of State,
recognizing the emergency, adopted the following resolution;
Resolved, that the Superintendent of the State Sanatorium,
by and with the consent of the board of trustees, borrow an
amount not to exceed $55,000 for the completion and furnishing
of the prison sanatorium building, and that the State Treasurer
is requested to negotiate the loan for the superintendent.
This loan was negotiated and the building completed and equipped. At
the recent session of the Legislature, so we are informed, the Sanatorium
presented this indebtedness in its request to the Budget Commission. It
again presented the matter to the appropriations committee and was informed
(so Mr. Harrison tells us) that the matter would be taken care of. For
some reason this was not done, as the sum appropriated to the Sanatorium
in the permanent improvements act of that session, namely, $137,000, was
BIENNIAL REPORT OF THE ATTORNEY GENERAL 79
absolutely essential for the erection of improvements to the Sanatorium
proper.
It thus resulted that no specific appropriation was made by the General
Assembly of 1925 to take care of this outstanding indebtedness of $55,000.
The opinion of this office, then, is requested upon the legal status of this
debt now, and whether or not in other acts enacted by the General Assembly
of 1925 it may be taken care of in any way.
Sub-section (a) of section 6 of the permanent improvements act of 1925
is as follows:
Sub-sec. (a) To reimburse the general fund for principal and
interest paid out of said fund for permanent improvements at the
charitable and other institutions of the State prior to January 1,
1925, and which was authorized by various laws of the General
Assembly amounting to $1,254,500.
We are informed that the $55,000 in question was not included in the
amount set out in sub-section (a). It is, we think, plainly also not such an
indebtedness as is to be taken care of by the act to permit the Governor and
Council of State to authorize the State Treasurer to borrow money in an
emergency, enacted also at the recent session of the General Assembly, as
this amount is not for the support of the institution within the meaning
of that term as used in section 1 of this act.
The general fund note act of 1925 seems, however, to meet the situation.
Stated generally, the purpose of that act was to fund all outstanding in-debtedness
of the general fund of the State as it would appear at the end
of the fiscal year 1924-25—July 1, 1925. In other words, it was intended to
make a clean slate at that time so that proper measures might be adopted
to keep the current expenses of the State within its current income.
Now, this $55,000 is plainly a moral outstanding liability of the State,
whether legal or not. The money has been borrowed by the Treasurer of
the State under instructions from the Council of State, and to the repayment
of this sum the general credit of the State is pledged. It is, therefore, we
think, plainly a liability of the general fund of this State and as such
should be included in the amount protected by the particular act now being
discussed.
It has been suggested, however, that the General Assembly not having
made specific provision for the payment of this $55,000, it should be taken
out of the permanent improvements fund provided for the Sanatorium in
the permanent improvements act of 1925, i.e. the sum of $137,000 so pro-vided.
The act, however, in its preamble states that it is necessary that
certain institutions and State buildings be permanently enlarged, improved
and equipped. It appears from this, as well as from the general tenor of the
act, that it is dealing with additional improvements to be made to the State
institutions after the date of its ratification, March 9, 1925.
If, however, our conclusion that this fund should be taken care of in the
general fund note act is not a proper interpretation of that act, then we have
an indebtedness of the State at large, outstanding, unprotected, and un-cared
for.
80 biennial report of the attorney general
State Commissions—Fees
May 21, 1925.
Your letter cf May 18th received. C. S. 3859 has been carried forward in
the third volume and is still in force. Therefore, you should charge and
collect the fees therein provided on commissions issued to judges, solicitors,
senators, representatives in Congress, etc.
I also advice that by the express provisions of this section you are en-titled
to retain 50 cents of these fees for your services.
Criminal Appeals—Appeal Bond
May 25, 1925.
In the matter of the appeal of Henry D. Griffin
The papers sent by you to this office do not recite the facts as fully as we
would desire in order that our opinion upon the question presented might
have the force it should have. We assume, however, that after the conviction
of Griffin in the Superior Court of Martin County and after judgment upon
such conviction, he gave the usual notice of appeal to the Supreme Court
and the Judge presiding fixed the amount of his hail bond pending appeal
and also the amount of his cost bond on appeal.
It seems that Griffin has executed the bail bond with proper sureties to
the amount required by the Judge, $50,000, and that this bond has been ap-proved
by the Clerk, the sureties thereto justifying in adequate amount to
make the bond sufl^icient to secure his appearance at some ensuing term of
the Court.
It is very clear that the execution of the bail bond in no way stays the ex-ecution
of the sentence. The act of 1887, Chapter 191, section 1, and the
act of 1887, Chapter 192, section 4, are brought forward in the Consolidated
Statutes of 1919 as section 4654, omitting, however, a portion of section 4
as contained in Chapter 192, which will be referred to hereinafter.
There are two ways under the statute by which a defendant can appeal
to the Supreme Court from the judgment upon conviction of a criminal
offense: One is without security for cost upon proper affidavit made. No
other official than the judge presiding can permit appeal in forma pauperis
and that permission must be granted during the term of the court and signed
by the judge himself. The Supreme Court thus holds in State v. Parrish,
151 N. C, 659, and numerous cases since. This opinion of the Court is based
upon the wording of the statute itself, for it specifically imposes the duty
upon the judge.
The second method is upon the defendant executing an appeal bond in
the sum fixed by the court. We understand that Judge Sinclair in the court
below fixed the amount of the appeal bond in the instant case at $50. This
appeal bond is not now and has not been since 1905 required to be executed
and filed during a term of the court. Up to 1887 in North Carolina the ap-peal
in a criminal case vacated the judgment. The act of 1887 declared that
that should not be the effect of the appeal, nor should the execution upon
such conviction be stayed except upon an order to appeal in forma pauperis
BIENNIAL REPORT OF THE ATTORNEY GENERAL 81
or the filing of the appeal bond for cost by the defendant. The act of 1887,
Chapter 192, section 4, contained this clause:
The Judge shall direct a stay of execution during the pen-dency
of said appeal.
This clause continued to be the law in North Carolina until the commis-sioners
revising the statutes in 1905 struck it out, and the effect of this was
to stay the execution upon the filing of the proper appeal bond or a proper
order from the judge permitting the defendant to appeal in forma pauperis.
The judge must allow an appeal in forma pauperis as the statute still stands.
He has, however, after he fixes the amount of the appeal bond, nothing fur-ther
to do with the stay of the execution arising from the fact that the ap-peal
bond has been executed.
This is the interpretation which the Court tacitly puts upon the act since
the amendment of 1905, in State v. Parrish, supra. There have been, indeed,
several cases similar to 8tate v. Parrish in the last few years in the Supreme
Court where a deposit was allowed to be made in that court in lieu of bond.
If, therefore, the defendant Griffin files with the Clerk of the Superior Court
of Martin County a proper appeal bond, adequately secured, in the sum fixed
by his Honor, Judge Sinclair, he can do so, though the term at which BTe was
tried has expired. If this proper appeal bond is certified to the warden of
the State's Prison by the Clerk of the Superior Court of Martin County
under his hand and seal, this, we thiilk, would amount to a stay of execution
pending the appeal. If the bail bond in the sum of $50,000 meets the re-quirements
of the court at the time the order was made and the clerk has
passed upon the adequacy of the sureties, then upon these facts being cer-tified
of record by the Clerk of the Superior Court of Martin County to fne
warden of the Penitentiary, the defendant Griffin would be entitled to his
discharge pending the appeal to the Supreme Court.
Appropriations—Reversion
May 30, 1925.
In reply to your memorandum of May 28th. You state therein that some
of the institutions of the State will on June 30, 1925, have a balance of funds
due them under the appropriation act of 1923 for permanent improvements.
You inquire whether or not in the opinion of this office these balances should
continue to be available to these institutions after that period, the end of
the fiscal year. Section 19 of the budget act declares that all unexpended ap-propriations
shall revert to the State Treasurer to the credit of the general
fund at the close of the biennial fiscal period. There are two exceptions to
this general provision. (1) Capital appropriations for the purchase of land
or the erection of buildings or new construction shall continue in force until
the attainment of the object or the completion of the work for which such
appropriations are made; (2) (This applies only to maintenance appro-priations)
Appropriations heretofore made by the General Assembly an^
82 BIENNIAL KEPORT OF THE ATTORNEY GENERAL
2iaid out by the State Treasurer. The first exception manifestly takes ap-propriations
for permanent improvements out of the reversion provision
and consequently, it does not apply to such appropriations.
State Institutions—Indebtedness
June 12, 1925.
In the matter of the State Home and Industrial School for Gdrls
We have considered carefully the letter of Miss McNaughton to you dated
May 29th, and we return it and accompanying paper to you.
It seems from her communication that the audit of this institution has not
been finally concluded. Enough appears, however, to show that the institu-tion
will have a debit balance to the amount, probably, of $30,000. We
know no way by which this debit balance can be taken care of under ex-isting
legislation except under the general fund note act of 1925. If, how-ever,
you should determine not to take care of it under that act, the balance
of the indebtedness having been incurred in the support of the institution,
it may probably be taken care of under the emergency act if there was a
failure of the General Assembly to provide an appropriation for this debit
balance. The facts as to this we do not know.
Appropriation—Permanent Improvements
June 17, 1925.
The supplemental permanent improvement act of 1925 provides that of the
appropriation of $68,000 for permanent improvements at Caswell Training
School, the sum of $5,000 shall be used for equipment for industrial building
and $5,000 for repairs and completion of the laundry, and "sufficient amount
shall be used to complete the water system and the balance shall be used
for the completion and repair of the present buildings and for no other pur-poses."
I understand that certain improvements were in process of com-pletion
at the Institution when this act was passed. From the fact that the
supplemental act directs that certain parts of the appropriation shall be
used "to complete" or "for the completion" of certain projects, I reach the
conclusion that the fund provided (to the extent that may be necessary)
may be used to pay the accounts contracted for the completion of the enter-prises
specified. Of course, if the amounts now due have been contracted for
work on projects other than those covered by section 2 of the supplemental
act, the present appropriation for permanent improvements could not be
used in paying bills already contracted. I assume, however, that it was
intended that the present appropriation may be used in the way indicated
for the reason that section 2 refers to "the completion and repair of the
present buildings."
biennial report of the attorney general 83
State Notes—General Fund—Cektib^icate ov Auditor
June 17, 1925.
By Section 2 of House Bill 1157, Senate Bill 699, Session of 1925, "An act
to authorize the issuance of general fund notes of the State," it is provided
with respect to such notes that "the aggregate principal amount of said
notes shall not exceed the amount the State Auditor shall certify to the
Governor and Council of State to be the debit balance resulting from current
operations of the general fund June 30, 1925 . . . provided, however,
that such notes may be issued in the aggregate amount of five million dol-lars,
notwithstanding the State Auditor shall not have so certified, it
now being known that said debit balance will at least equal the sum of five
million dollars." It will thus be seen that notes to the amount of five million
dolars may be issued without any certificate from the State Auditor, it
having been definitely ascertained at the time of the enactment of this
bill that the indebtedness would amount to this minimum amount.
You ask the opinion of this office as to whether the Auditor may indicate
his determination of the aggregate amount of the debit balance in two or
more certificates, rather than in one. It is desired that notes under this
act for five or seven million dollars be issued July 1st, and at that time the
exact amount of the debit balance cannot be definitely determined by the
Auditor for the reason that all of the reports and other information upon
which such determination must be based will not then be available.
I am of the opinion that on July 1st the Auditor may give his certificate
showing a debit balance of seven million dollars or such other amount as he
may then be able to determine as existent, and may at a later time,
when full information is available, give a second certificate showing the
total amount of the debit balance at the end of the fiscal year, June 30,
1925. In the first certificate he should indicate that he is therein covering
the debit balance then ascertained to exist, and that i